A Thought on Notarized Wills
By Timothy Sorenson, CLS ’20
The Uniform Probate Code prescribes a set of formalities with which non-holographic wills must comply. Prior to the 2008 round of revisions, the Uniform Probate Code stipulated that a document be written, signed by the testator, and witnessed by two parties.In 2008, the witness requirement was altered to permit notarization as an alternative.Notwithstanding the enhanced flexibility this amendment affords unsophisticated testators, it has not traveled particularly well. In fact, as of 2014, only two state legislatures had enacted the provision.
Despite the UPC’s imprimatur, state courts have also treated notarization disapprovingly. Notarization aside, most courts will not apply the doctrine of substantial performance to rescue a will signed only by one witness.However, state courts have similarly declined to apply the substantial performance doctrine to situations in which a testator has secured only a notary’s signature.Given the resounding rejection of will notarization in state judiciaries and legislative bodies, one can’t help but wonder as to the reasons for its unpopularity.
One commentator outlines the destructive impact of notarized wills on the celebrated ritual and protective functions of will formalities.She argues that traditional witnesses are better gatekeepers than are public notaries. Whereas witnesses ensure that the testator possesses the capacity and intent to create a will (free from undue influence), a public notary merely verifies that the signature belongs to the prospective testator.She also warns that loosening the witness requirement detracts from the “seriousness” of will creation, pushing the entire affair further down the slippery slope towards no formalities.
On the other hand, embracing will notarization increases the number of cases in which courts can give effect to the testator’s probable intent. One prominent commentator disagrees with Rhodes, arguing instead that relaxing the witness requirement would undermine neither the ritual nor the protective functions.With respect to the former, he maintains that most people regard notarization as a formal, legally significant procedure.Thus, allowing notarization as a substitute would not enhance the risk of haphazard will creation. Moreover, given the pervasive perception of notarization’s legal potency, allowing notarized wills to be probated would better reflect general expectations.
He also states that other, widely used estate planning documents do not require witness attestation.This observation is especially salient, as the savvy can nowadays (and often do) dispose of their entire estates (or the bulk thereof) outside of probate. On this point, he argues that the protective concerns with respect to unwitnessed wills are overblown. In addition, he advises that a great deal of “confusion and chance for error” could be avoided by rendering uniform the formalities for estate planning documents.
In states that permit holographic wills as well as those that apply the harmless error rule, a failure to adopt the UPC’s suggested reform is of lesser consequence. However, in a state that offers neither amenity, empirical research would be helpful in constructing a profile of the prototypical decedent denied probate due to misplaced reliance on notarization. My strong suspicion is that prospective testators of lesser means, who are more likely to make use of Internet form wills (without consulting estate planning experts), are most likely to be negatively impacted.
Unif. Probate Code § 2-502 (Unif. Law Comm’n 1990, amended 2010).
Anne-Marie Rhodes, Notarized Wills, 27 Quinnipiac Prob. L.J. 419, 419 (2014).
See, e.g.,Smith v. Smith, 348 S.W.3d 63 (Ky. App. 2011).
See, e.g.,In re Will of Ferree, 848 A.2d 81 (N.J. Ch. 2003), aff’d, 848 A.2d 1 (N.J. App. 2004).
Anne-Marie Rhodes, Notarized Wills, 27 Quinnipiac Prob. L.J. 419 (2014).
Id. at 429.
Id. at 428.
Lawrence W. Waggoner, The UPC Authorizes Notarized Wills, 34 ACTEC J. 83 (2008).
Id. at 85.
Id. at 86.
Id. at 85.